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In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The case concerns alleged Discrimination against the Complainant on the grounds of Disability, Victimisation, failure to provide “reasonable accommodation” and Discriminatory Dismissal. For ease of reference two business locations are mentioned i.e. Town A and an allied business in Town B

1: Summary of Complainant’s Case:

The Complainant worked initially from 2004 to 2006 for the Respondent. In December 2013 she had been diagnosed with Lupus SLE but it was well in remission during this period. She accepted an offer of a new position with the Respondent in April 2015 in Town A. Following an unrelated Surgical procedure (two weeks sick leave) she returned to work in October 2015 and informed her employer about her Lupus condition. Her inability to work a full-time position was first advised.

A number of meetings followed with Respondent Mangers and the issue of part time work or job sharing was raised by the Complainant. A referral to the Company Occupational Health Advisors -MedWise was made.

The MedWise Report (of November 2015) advised that the Complainant was able to work in a full-time role and she continued to do so until February 2016. In February she suffered from a flare up of her condition and was hospitalised for a brief period. On her return it was necessary, on her Medical advice, to have a phased return to full time duties. In May 2016 her GP, Dr.K., advised her to seek a three-day week in view of her condition. A number of meetings followed, in early June, with Respondent Mangers. She was advised that it was a case of working full time or not at all. The Complainant is then out of work on sick leave for a period of some eight weeks. Following further communication from her GP the Respondent arranged a second Med Wise appointment for the Complainant. The MedWise report confirms that the Complainant is only fit for part time work . The Respondent indicated by e mail of the 27th June 2016 that “reduced hours are not available for the position you hold”.

Further correspondence followed culminating in the Complainant lodging a formal grievance with the Respondent in July 2016. While the Grievance was rejected by the Respondent a temporary return to work on a three-day week basis to be reviewed in September 2016 was proposed by the Respondent.

The Complainant returned to work on this basis. A further Medical report from MedWise was received in September 2016 which confirmed that the Complainant was only suitable for a three-day week engagement for the moment. The Respondent than insisted that the three days amount of work be spread over four days. The Complainant sought medical advice and agreed to the 3 over 4 proposals.

In January 2017 the Complainant’s consultant advised that four full day week was possible if the days were not consecutive and rest periods (days off) were provided for. A return to full timework was not deemed possible at this stage.

In June 2017 the Respondent offered a permanent 3-day week position (basically a job share with another employee) in a related branch of the Company -Town B some 15 miles away. She accepted this position only to discover that the only feasible way, from the Respondent’s point of view, of working the arrangement was to work essentially a week on/week off arrangement. This was, on Medical advice, unacceptable to the Complainant. The offer was withdrawn when this issue became clear. She indicated that she wished to continue in her then role in Town A but was advised that this role was no longer available on a part time basis. The Complainant was then suggested/offered a part time position in the Company Call centre. This was a position at a much-diminished remuneration package (loss of company car) and status. The Complainant asked for this offer to be made in writing. This happened in or around the 1st September 2017. On the 5th September the Complainant was advised that if she did not accept the Call Centre offer her employment would be terminated. On the 8th September the Complainant was notified that her employment was terminated.

It was the Complainant’s position throughout the Hearing and in all her evidence that the Respondent employer had failed to provide reasonable accommodation for her disability. The continued refusal to countenance a part time role in Town A was completely discriminatory. The Offer of a role in town B necessitated a week on/week off arrangement which was medically impossible for the Complainant and the refusal to countenance any other arrangements was completely discriminatory. The Respondent employer had an opportunity to resolve the issue with the Job in town B but had failed to realistically engage with the Complainant and the other Job sharer to arrive at a suitable compromise rostering arrangement. This was a Discriminatory action by the Respondent.

The effective withdrawal of the four-day Town A position in late 2017 was again completely discriminatory and the Call centre Offer was basically derisory and could not be seem as a serious offer to the Complainant.

2: Summary of Respondent’s Case:

The Respondent is a major motor dealer in the Irish Midlands. In Spring of 2015 a vacancy arose for a Business Manager to assist with the financial aspects of new car sales. It was a full-time role and the Complainant accepted it as such by contract dated the 7th April 2015. The hours of Work were based on a full day Monday to Friday and a shorter day on Saturday. One day off per week was allowed by agreement. It is a busy full-time role particularly at those times of the year when Car sales peak – January and July.

At the time of her appointment the Complainant did not advise the Respondent of any medical conditions - the relevant section on her contact details form was left blank.

Shortly after commencing in her role the Complainant requested that she be allowed to job share with a colleague. The Respondent was unable to accede to this request as it was a full-time role. At no stage were any ill health/disability issues advised to the Respondent during this initial period.

In November 2015 the Complainant advised the Respondent that she had Lupus Disease. The Respondent, acting out of concern, arranged for the Complainant to attend at MedWise -Occupational Health practitioners in November 2015. The Report received indicated that the Complainant was fit for full time work but recommended Annual reviews.

During January 2016 the Complainant worked a six-day week and wrote a considerable volume of good business.

The Complainant was ill from 22nd February to the 10th March. On the 14th March 2016 the Complainant requested a “phased” return to work – this could not be accommodated but it was suggested that the Complainant could use some of her Annual leave days to make her return easier.

Normal work continued until the 9th June 2016 when the Complainant presented a Medical certificate from her GP -Dr.K - indicating that she should be facilitated with a three-day week for a month. This resulted in a number (4) of meetings with the Respondent Managers in early June. The request for a three-day week could not be facilitated. On the 16th June 2016 the Complainant became unwell and was on `sick leave for a period of eight weeks thereafter. MedWise was again consulted, they reviewed the Complainant and indicated that she was now only fit for part time work. The Respondent could not facilitate this arrangement.

On the 14th July 2016 the Complainant lodged a Formal grievance and first referred to her condition as a Disability. Manager XP considered the Grievance and rejected the Disability element as it had never been advised to the Respondent prior to her Grievance. However, a phased return to work, on a three-day basis, was allowed until September 2016. A further Med Wise assessment took place on the 23rd September which recommended a three-day week for the Complainant. This could be reviewed in January 2017 to see if a four-day week could be accommodated but only with the advice of the Complainant’s treating Medical specialist.

On the 15th November 2016 the Respondent met with the Complainant. The Respondent indicated that they had spent considerable time trying to see how best to facilitate the Complainant. They had spoken to a part time Business Manager in Town A to see if she would revert to full time but she had declined. The Company had looked at hiring an additional staff member on a part time basis to facilitate the Complainant but this was not feasible in terms of cost. The Respondent mentioned that there might be opportunities in a new Call centre operation and the Complainant indicated that she would think about it. The Respondent asked the Complainant to consider working her three days hours over four days -medical advice was to be sought on this point. The Complainant stated that she gathered from the drift of the conversation that the current arrangements (three days) was not really working out and the Respondent replied that it was causing them difficulties but they were working hard to see what other options might arise. A further meeting took place on the 22nd of November 2016 to consider options- a four-day week was now it appeared possible but this would, have to be agreed by the Complainant’s own GP and her Specialist. Med Wise would also need to be consulted.

On the 17th November 2016 the Complainant’s GP indicated that she could agree to a four-day week. Further medical correspondence came from the consultant Specialist indicating that four days could be attempted provided that days did not run consecutively. The Respondent wrote to the Complainant on the 24th January 2017 indicating that a four-day week would be implemented until March 2017.

On the 22nd June 2017 the Respondent met with the Complainant to discuss an alternative offer of a permanent accommodation. This was a position as a part time Business Manager in Town B. Several meetings took place to explore this option. Ultimately this position did not become a reality as the pattern of working hours proposed in conjunction with the other job sharer evolved into a week on /week off arrangement. Several options (4) had been considered but this seemed to be the only one that was a realistic option to accommodate all the parties involved while protecting the needs of the business. The pattern of hours suggested was not possible for the Complainant to agree to.

On the 1st September the Respondent advised the Complainant that they could no longer continue the Part-time Role in Town A. It was having a severe impact on their business. The offer of work in the Call centre was again discussed but was not acceptable to the Complainant.

Following these developments, the Complainant’s employment contract was terminated with effect from the 7th October 2017.

In closing their evidence, the Respondent maintained that they had not dismissed the Complainant in breach of the Equality Acts. Every reasonable effort had been made to facilitate the Complainant but her requirements for a long-term part time position could not be facilitated. The position was in the final analysis a full-time role, vital to the business and couldn’t become a part time position.

The Respondent had made all reasonable offers of accommodation, had sought extensive medical advice, had considered alternative positions, redistribution of working duties and times but in the final analysis it was not possible to accommodate the Complainant.

The Respondent referred extensively to the Court of Appeal judgment in the Nano Nagle School v Daly case [2018] IECA 11 is support of their position and by extension argued that this validated their interpretation of Section 16(1) of the Employment Equality Act,1998 as supporting their position.

3: Findings and Conclusions:

The role of the Adjudicator in this case is to ascertain whether the Respondent discriminated against the Complainant in terms of Section 6 and Section 8 of the Employment Equality Act, 1998 and whether Reasonable Accommodation was providing to the Complainant in accordance with Section 16 of the Act and whether the Complainant was discriminatorily dismissed?

3:1 Legal Background

Significant Oral and written submissions were made over two days in this case. Comprehensive Medical reports were advanced in evidence both from the Respondent and the Complainant.

In a case of this nature the first legal requirement is to establish that the Complainant did in effect suffer from a Disability.

Both parties accept that the Complainant was suffering from a Lupus Disease condition during her employment. Although disputed as to when the Respondent was initially notified of this condition there was no doubt that it was a disability. Accordingly, a first step in considering the case I found that the Complainant did possess a disability in accordance with Section 2(1)(e) of the Acts.

The next question I considered is how “Reasonable Accommodation” was considered in terms of Section 16 of the Act in this case.

In the 2012 Publication of Employment Equality Law, 1st edition, By Bolger Bruton and Kimber, Reasonable Accommodation was introduced in the following setting

“In the employment sphere, the obligation of reasonable accommodation requires employers to remove barriers and adjust the work environment or structure, in order that disabled individuals are placed in a similar position to their non-disabled counterparts. It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard, it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary. It involves the person being involved in an interactive dialogue with the employer to search for the right kind of accommodation needed in the overall circumstances of the case.”

‘To guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

In considering the Nature and extent of employer’s obligations in certain cases we need to look at Section 16 in detail in particular Sub sections (1) and Subsection (3)

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or continue to undertake) the duties attached to that position or will not accept (or continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16 (3) & (4)

(3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

(4) In subsection (3)—

‘ appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

The current interpretation of the Sections is heavily influenced by the recent Court of Appeal Decision in Nano Nagle Centre v Marie Daly [2018] ICEA 11. It has to be noted that the case as decided by the Court of Appeal is itself now under appeal to the Irish Supreme Court.

Nonetheless this case as decided at the Appeal Court was relied heavily upon by the Respondents in seeking to advance their case that they had made all reasonable efforts to provide a Reasonable Accommodation and in so doing had discharged their obligations under Subsection 16(1) above. The key point being taken by the Respondent from the Court of Appeal decision is that once the Complainant is not capable of carrying out the key functions, the essential elements, as stated in the Judgement then the protection of Section 16(1) have to apply in the Employer’s favour. The key element being the need to do the job on a full-time basis.

To consider the applicability of the Nano Nagle case and Section 16 in general to the case in hand it is necessary to consider the evidence presented.

Recent decisions of the WRC and the Labour Court that have considered Reasonable Accommodation post the Appeal court were also considered – Ref Adj-00011821 , Adj-0000929 and Labour Court Excellence Ltd v Herzyk (EDA 1815).

As an aside it is worth noting that the Supreme Court in granting Leave to Appeal the Appeal Court decision on the 7th July 2018 note that the issue was one where

“the decisions show a significant divergence of approach and outcome between decision makers in respect of an important and difficult provision derived in turn form a Directive of European Law.” Para 6 of the Supreme Court.

The Supreme Court did caution regarding appeals that were

“dependent on specific facts of the case and as raising no issue of interpretation which could affect the outcome of the case.”

In plain English I took this to mean that the Nano Nagle case is not a “one size fits all scenario” and a careful consideration of the facts of a case is required.

3:2 Consideration of the Evidence - Medical and Operational

The Medical Evidence comes primarily from three MedWise (the noted Occupational Health practitioners), written reports and reports in writing from the Complainant’s GP and letters from her Consultant in St Vincent’s and Occupational Therapy in Harold’s Cross Hospitals. The Bona Fide of the documents was accepted and no medical personnel gave oral evidence.

Taking MedWise first there are three reports, November 2015, June 2016 and September 2016.

Unfortunately for the Complainant they report a deterioration from being fully fit in November 2015 to the 30th September 2016 report.

“I must conclude that X is only fit to work part time i.e. a max of 3 days per week. She is fit to provide reliable and effective service on a part time basis, but not on a full-time basis. This view is supported by the treating doctors” signed by Dr X of MedWise

The Medical evidence, in the Complainant’s booklet, from the treating doctors, her GP and two Consultants, reiterated the MedWise report.

In summary therefore by the Start of October 2016 the Complainant is fit for all her duties but on a Part Time basis - a 3 day per week basis.

The Operational response of the Respondent to this Medical Situation needs consideration. As far back as the 27th June 2016 the Respondent had indicated that “Reduced hours are not available for the position you hold”. None the less a temporary arrangement had been entered into to allow the Complainant work a three-day week until September 2106 and following considerable discussions this had become a four-day week by January 2017. Considerable Medical reservations were expressed to this proposal (the need that the 4 days did not run consecutively was emphasised) but the Complainant appeared willing to do her best in the circumstances. The four-day week remained in place in Town A for the initial part of 2017.

At the end of July 2017, a replacement position of a three-day week in Town B was offered by the Respondent but on a week on week off basis. The mechanics of this were somewhat disputed but in an email of the 1st August from Manager XF it was made clear that what was involved was three days on followed by one day off and a further three days on to be followed by a full week off. The Respondent Manager maintained in evidence that the proposal was one of four that had arisen in discussions and was the one he preferred. However, he had not dictated the discussions between the parties. The other party to the Job Share in Town B had also to agree. The Complainant sought the Advice of her Consultant Doctor in Harold’s Cross. The reply was that a four-day week was still possible but with a minimum break of two days between the two three-day blocks.

This proved unacceptable to the Respondent and the Town B proposal came off the table. An alternative proposal of work in the new Call Centre then emerged again. It appeared that the details for this position needed to be clarified but in any event, it proved unacceptable to the Complainant. The Complainant was also informed that a reversion to her existing four-day week in Town A was unacceptable to the business.

3:3 The Question of Reasonable Accommodation.

What differentiated this case, in my view, from the Nano Nagle scenario is that the Complainant was fully fit for work in all its aspects save that she needed regular periods of time off (2 or more days) between working periods.

In the Nano Nagle case the Complainant had significant physical difficulties and was physically incapable of aspects of her role. The difficulty as identified in the Appeal Judgement was in the division between essential and non-essential tasks and how best a Reasonable Accommodation arrangement could handle these.

The only issue in the case in hand is the need for a fully fit (by medial evidence) employee with a disability -Lupus – to have a pattern of work breaks that was different from a normal five/six-day week. On the basic facts I found it hard to see how the Nano Nagle case was directly factually comparable and certainty to the significant extent being relied upon by the Respondent.

It is worth noting that Section 16(4)(b) references changes to “patterns of working time” as being Reasonable Accommodation.

The Respondent employer had made it clear from an early date that they were very unhappy with the position being less than a full-time role. However, they had reluctantly, it was clear, facilitated the Complainant during the Summer of 2016 with a three-day week in Town A and had accepted a four-day week in the latter part of the year.

It appeared that staff members in Town A and Town B were being facilitated with job sharing arrangements. The difficulties being identified by the Respondent with the Complainant’s need to have patters of work breaks (2 days) did not appear to be reasonable. I had to accept that it might be a logistical challenge for the Respondent. However, the Company is not a small organisation and a reorganisation to facilitate the Complainant did not appear to be insurmountable.

This is the key practical question in the case -could the work breaks, to facilitate the Complainant’s disability, be reasonably accommodated or not. I noted that the Respondent had gone a long way to make this Reasonable Accommodation/ Reduced Hours work during 2016. The Complainant was sensitive to the Peak car sales periods and was, it appeared, prepared to go beyond her Medical advice in these limited time periods. As a Reasonable Accommodation plan I could not see why it could not continue to work for all parties with the fall back of regular reviews by Med Wise as a comfort for the Respondent.

I was not convinced by the Respondent’s arguments in favour of a relief under Section 16(1), basically financial (cost of another part time staff member and the need to have Business Manager continuity for the Sales Staff), on this point. The Act -Section 16(2)(b) refers to a “Disproportionate” burden on an employer. I could not see this from the evidence.

It was accepted that the decision was not arrived at until after considerable medical evidence had been reviewed but the views of the Respondent from a very early date (27th June 2016) that

“a non-full-time position was not available”

had also to be reflected upon.

Of note here was the consideration given by the Adjudication Officer to considerations of changes in Shift time to the Complainant in case ADJ-00009293 referred to earlier. In this case the Respondent had also relied heavily on Section 16(1) of the Act which reliance was set aside by the Adjudicator in finding in the Complainant’s favour.

Accordingly, having reviewed all the evidence, I had to find that the Complainant was discriminated against on the grounds of her disability and the Respondent failed to provide Reasonable Accommodations provided for in Section 16 (3) & (4) and cannot rely on Section 16(1) for a rebuttal.

3:4 Discriminatory Dismissal

Both parties accept that the Complainant had a disability and the ending of the contract /dismissal was not in dispute. As stated above I accept that the Complainant had a Disability as provided for in Section 2 of the Acts.

Regarding the Dismissal have considered all evidence, both written and oral.

Legally in evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In this case I was happy that a prima facie case of Discrimination had been established.

I am satisfied that the dismissal was directly related to both the Complainant’s disability and a failure in the obligations contained in Section 16(3) – Reasonable Accommodation of the Act. The reasoning for this is set out above in the discussion of the question of Reasonable Accommodation.

In terms of the actual mechanics of the Dismissal – a brief note To Whom it May Concern dated the 8th September 2017 was the only formal written notice given. This was not in keeping with good procedures and no mention of an opportunity to appeal was given.

The Complainant was not provided with due process or fair procedures in accordance with SI 146/2000 -Statutory Code of Practice on grievance and Disciplinary Procedures.

3:5 Victimisation

In terms of supporting grounds for a victimisation claim, as commonly understood, I did not really find any supporting evidence. The lodging of a Formal grievance in July 2016 probably did not improve relationships but it was hardly a fatal step for the employment relationship.

3:6 Summary Conclusions.

The Respondent largely based their case on their interpretation of the outcome of the Court of Appeal decision - Nano Nagle Centre v Daly case [2018] IECA 11 as regards Reasonable Accommodation. Their interpretation allowed then to seek to rely on Section16 (1) of the Employment Equality Act as a defence.

Accepting that the Appeal Court Nano Nagle case gave a very learned interpretation of Section 16(1) and Section 16(3) I felt that in the present situation there was not a sufficient parallel correspondence between the facts of the cases to justify this fundamental reliance by the Respondent.

In the case in hand the Complainant was fully fit for all her duties save that she had to have a shorter working week or at best reasonable breaks between period of work. This was not a case of a fundamental inability to carry out essential duties as considered in the Nano Nagle case.

The failure to adequately address this work breaks issue was the key factor in the Discrimination over Reasonable Accommodation. Seeing that the Respondent was able to facilitate the shorter work week initially of three days (following the Grievance outcome in July 2016) and rising to four days in early 2017 I could not see any realistic argument being put forward as to why this could not continue. It was stated in oral Evidence from the Respondent Managers that the Sales Force were complaining about a lack of continuity but when other staff members in similar roles were on Job Sharing in Town A and Town B I could not see this argument holding up to a reasonable scrutiny.

The nature of the position as described, a Finance Manager supporting the Sales force, was open to a more detailed examination in terms of rostering of staff to provide the necessary cover. The economic argument that the costs were prohibitive as an extra staff member would have to be recruited to cover the days off the Complainant was also I felt not completely closed to serious questioning. I failed to see this as a “Disproportionate Burden”

Accordingly, I could not find that Section 16(1) could apply to overcome Section 16(3).

On this basis, a finding of Disability Discrimination on the Reasonable Accommodation grounds had to be found together with the follow on finding of Discrimination and a Discriminatory Dismissal. The claim of Victimisation I did not find supported by any realistic evidence.

4: Decision:

4:1 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.